IN THE CASE OF:	

		BOARD DATE:	16 May 2013

		DOCKET NUMBER:  AR20120009988 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests correction of his date of rank (DOR) as a captain (CPT) to 1 July 2011, and payment of back pay and allowances as a result of this correction.

2.  The applicant states his promotion was delayed due to an administrative error.  His initial appointment to first lieutenant (1LT) was never processed through the National Guard Bureau (NGB).  When his promotion to CPT was sent to NGB it was rejected because his initial appointment was never processed.  He had to wait for his S1 to rectify the initial appointment to 1LT with the NGB before they would process his promotion to CPT.  The error resulted in delaying his promotion to CPT until 19 December 2011.

3.  The applicant provides:

* Orders 068-862 
* two memoranda
* three pages of electronic mail 
* DD Form 214 (Certificate of Release or Discharge from Active Duty)

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he submitted an NGB Form 62 (Application for Federal Recognition (FEDREC) as an Army National Guard Officer) on 6 June 2009 for appointment as a Judge Advocate General officer in the rank of 1LT.

2.  On 24 November 2009, a Federal Recognition Board (FRB) was held by the South Carolina Army National Guard (SCARNG) to determine if the applicant was qualified to be awarded FEDREC.  The proceedings indicated the applicant was satisfactory in his physical qualifications, moral character and general qualifications.  The FRB found the applicant qualified for appointment as a 1LT.  

3.  On 30 November 2009, the SCARNG published Orders 334-822 appointing him as a 1LT in the SCARNG effective 24 November 2009 and with a DOR of   24 November 2009.  He executed an oath of office on the same date                (24 November 2009). 

4.  He attended and successfully completed the Judge Advocate General's Officer Basic Course from 4 July through 29 September 2010.  

5.  On 13 February 2011, he entered active duty in support of Operation Enduring Freedom.  He subsequently served in Afghanistan from 14 March to 8 December 2011.

6.  On 9 March 2011, the SCARNG published Orders 068-862 promoting him to CPT effective 9 March 2011 and with a DOR of 9 March 2011.  

7.  On 26 August 2011, NGB published Special Orders Number 198 AR extending him FEDREC for promotion to 1LT effective 24 November 2009.

8.  On 20 December 2011, NGB published Special Orders Number 341 AR extending him FEDREC for promotion to CPT effective 19 December 2011.

9.  An advisory opinion was obtained on 20 November 2012 during the processing of this case.  The Acting Chief of the Personnel Policy Division, NGB, recommended full administrative relief of the applicant's request to correct his DOR to CPT and that he receive all back pay and allowances.  He stated:

	a.  The applicant's correction of his DOR to CPT was delayed as a result of his initial FEDREC for 1LT never being processed.  His current DOR to CPT is              19 December 2011; however, the SCARNG published the promotion order on     9 March 2011. 

	b.  The NGB rejected the FEDREC action to CPT based on the applicant having never received FEDREC to 1LT.  Once this action was corrected and FEDREC was granted for his 1LT promotion, the applicant's packet was resubmitted to NGB FEDREC Branch with an order being published on             20 December 2011 granting him a DOR to CPT of 19 December 2011.
	c.  Considering the error was no fault of the applicant, he should receive full administrative relief and be awarded all pay and benefits associated with the new DOR to CPT.  Additionally, the normal processing time for FEDREC within the NGB is 90-120 days; therefore, it is recommended the applicant's DOR be dated on or about 90-120 days from the time his promotion order to CPT was published by the State on 9 March 2011.
	
   d.  The State concurred with the recommendation.

10.  On 27 November 2012, the applicant was provided a copy of the NGB's advisory opinion.  He did not respond. 

11.  Title 32, USC, section 307(d) provides that FEDREC shall be extended to each officer of the Army Reserve who has qualified for appointment as an officer of the Army National Guard in his reserve grade.  

12.  Title 10, USC, section 14308(f) (Effective date of promotion after FEDREC), states the effective date of a promotion of a Reserve commissioned officer of the Army or the Air Force who is extended FEDREC in the next higher grade in the ARNG or the Air National Guard under section 307 or 310 of Title 32 shall be the date on which such FEDREC in that grade is so extended.  Pursuant to Title 10, USC, section 741(d) (2) provides that unless otherwise provided by law, the DOR of an officer who holds a grade as a result of a promotion is the date of his appointment to that grade.

13.  Title 10, USC, section 12203, provides that appointments of Reserve officers in the grades of lieutenant colonel and below shall be made by the President.  This authority has been delegated to the Secretary of Defense via Section 1, Executive Order 13384, dated 27 July 2005.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his DOR to CPT should be corrected to 1 July 2011 and that he receive back pay and allowances as a result of this correction was carefully examined; however, there are some errors the Army Board for Correction of Military Records (ABCMR) may not correct.

2.  Without question, the failure to process the applicant's FEDREC paperwork for his appointment as a 1LT was in error and occurred through no fault of his own.  Title 10, USC, section 1552, the statutory authority for the ABCMR, gives the Board broad authority to correct Army records to remove errors or to remedy an injustice; however, the authority granted by this statute is not unlimited.

3.  The ABCMR may only correct Army records.  The Board has no authority to correct records created by the other Services or the Department of Defense.

4.  Any correction by the ABCMR must comport with other laws.  The Board may not ignore a requirement contained in, or outcome dictated by, another statute.  Typically, the ABCMR achieves this by changing an operative fact in the record, thereby making a correction in compliance with that statute.  Where officer personnel issues are involved that require approval by the Secretary of Defense, the Board's hands are often tied.

5.  Consequently, based on the authorities cited above, any correction to the applicant's effective DOR would effectively amend the Secretary of Defense's action and goes beyond the authority of this Board.

6.  However, when a valid appointment has been accomplished, the Board can take action to grant an officer an earlier DOR if warranted by the facts in the case.  Based upon this guidance, and as a matter of equity, it would be appropriate to grant the applicant partial relief in this case by amending the applicant's DOR to CPT to 1 July 2011 with an effective date of promotion of     19 December 2011.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____x___  ___x____  ___x____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending the applicant's DOR to CPT to read 1 July 2011.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends 


denial of so much of the application that pertains to changing his effective date of promotion to CPT to read 1 July 2011.




      _______ _   _x______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.



ABCMR Record of Proceedings (cont)                                         AR20120009988





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ABCMR Record of Proceedings (cont)                                         AR20120009988



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